Del Rio & Winter Garden Telephone Co.

In the Matter of DEL RIO & WINTER GARDEN TELEPHONE COMPANY, EMPLOYER and SOIITIIwESTERN DIVISION No. 20, COMMUNICATION WORKERS OF AMERICA, PETITIONER Case No. 39-RC-36.Decided July 14,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this matter was held at Del Rio, Texas, on March 9, 1949, before James P. Wolf, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner, Southwestern Division No. 20, Communication Workers of America, is a labor organization claiming to represent ,employees of the Employer. 3. A question affecting commerce exists concerning the. representa- tion of certain employees of the Employer, within the meaning of .Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a system-wide unit of all employees in the Plant, Traffic, and Commercial-Accounting Departments of the Em- ployer. The Employer contends that the employees of the three de- partments should not be grouped together in a single unit. Instead, the Employer proposes that two units be established, one limited to the employees of the Plant Department, and the other including the employees of the Traffic and the Commercial-Accounting Departments. The parties agree that chief operators are proper unit exclusions. The.. parties, however, disagree as to the following classifications : agents and employees at agency exchanges, field plant men and their helpers, 85 N. L. R. B., No. 34. 199 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cashiers, and private secretaries ; the Petitioner would include these disputed classifications, whereas the Employer would exclude them. The Employer admits, and the record shows, that its operations fo1- low the norm in the telephone industry. In accordance with the pre- vailing custom in this industry, the Employer divides its operations into three departments:' (1) the Plant Department, which installs and maintains the Employer's, equipment; (2) the Traffic Department, which operates the equipment; and (3) the Commercial-Accounting Department, which handles the Employer's business relations with the public and keeps the books and records. Although each department performs a separate and distinct function, the Board has frequently recognized the highly integrated and interdependent character of the operations of similar departments in the telephone industry.2 Further- more, although the working conditions and wages of the employees in the various departments of the Employer differ in some respects, the Board has nevertheless noted the community of interest among em- ployees in such departments because of their common interest in ren- dering a public service.3 Accordingly, in view of the integrated nature of the Employer's operations and the community of interest among the employees of the three departments, and in the absence of any history of collective bargaining among the employees of the Employer,4 we conclude that a single unit embracing the employees of the Plant, Traffic, and Commercial-Accounting Departments of the Employer is appropriate for the purposes of collective bargaining. There remains for consideration the question of including or ex- cluding the disputed classifications. Agents and Employees at Agency Exchanges: The Employer has its general offices and main exchange at Del Rio, Texas, where its largest labor group is employed. In addition, the Employer maintains 21 other exchanges in communities throughout southwestern Texas, which are staffed for the most part by telephone operators and clerical em- ployees. Approximately 12 of these exchanges, which for convenience we shall term agency exchanges, are in charge of individuals designated by the Employer as agents. Under oral agreements, these agents are engaged to operate the Employer-owned exchange switchboard 24 hours a day, and responsibly to perform on behalf of the Employer whatever other services are necessary to insure efficient telephone service to the communities. The services performed include collecting s Matter of, The Ohio Associated Telephone Company, 82 N. L. R. B. 972 ; and Matter of San Marcos Telephone Company, 81 N. L. R. B. 314. 2 Ibid. 8 Matter of The Ohio Associated Telephone Company, supra , and cases cited. 4 Cf. Matter of Interstate Telephone Company, 77 N. L. it. B . 637 ; and Matter of The Chesapeake and Potomac Telephone Company of Virginia, 82 N. L. it. B. 810. DEL RIO & WINTER GARDEN TELEPHONE COMPANY 201 revenue, handling complaints, receiving subscriptions, keeping office files, and supervising operators employed to assist the agents. Each agent, in turn, is paid a fixed monthly sum by the Employer. In addition, living quarters are furnished the agent in the building where the switchboard is located, the Employer paying the rental and utility expenses incurred by the agent. The Employer contends that the agents should be excluded from the unit as, in its view, they are independent contractors who under the Act are not included in the category of "employees." 5 In recent cases, when faced with this contention the Board has applied the common- law "right of control" test to determine whether an employment rela- tionship or an independent contractor status exists .r Under this test an employment relationship exists where the person for whom the serv- ices are performed reserves the right, even though not exercised, to control the manner and means by which the result is accomplished T In this case, the record shows that the Employer retains the right to control the operations of the agency exchanges and, moreover, that it effectively exercises that right. The Employer owns all the tele- phonic equipment used by the agents and furnished them their places of work, living quarters, and utilities. Although the Employer does not minutely supervise all details of the exchange operations, such lack of supervision is not unexpected where the operations involved are small and in widely separated communities. The Employer does, however, outline the general methods followed by the agents in col- lecting revenues, handling complaints, and processing subscriptions for installation of telephone service. Over and above control of the work premises and techniques, the Employer has decisive control over the tenure and remuneration of the agents and of the operators who assist the agents. The Employer may terminate the agents at any time with or without cause and it may increase or decrease the num- ber of operators employed at the exchanges ; it sets the monthly in- come of the agents and determines the rates of pay for the operators, pays the operators, and makes payments on Social Security coverage for the operators. This control over both operations and personnel is, in our opinion, amply indicative of the existence of an employ- ment relationship between the agents and the Employer. Accord- ingly, we find that the agents are not independent contractors. In the Southwestern Associated Telephone Company case, upon which the Employer relies, the Board found that the agents who op- 5 Section 2 (3) of the Act provides that "the term 'employee' . . . shall not include . . . any individual having the status of an independent contractor." Matter of Can Marcos Telephone Company, supra ; and Matter of Steinberg d Co., 78 N. L. R. B. 211 . See Matter of Toledo Scale Company, 82 N. L. It. B. 826. 7 Singer Manufacturing Co. v Rahn, 132 U. S. 518 ( 1889). :202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crated the agency exchanges were independent contractors." In reach- ing that conclusion the Board found "most persuasive" the fact that the employer had no right of control over the hiring, disciplining, and discharging of the operators under the agents. Also, in the South- western case the Board was particularly impressed by the broad dis- cretionary powers given most agents with respect to setting the wages .of the operators, and by the relative freedom of the agents in connec- tion with the operation of the exchanges especially since the agents paid all expenses for heating, lighting, and servicing without being reimbursed therefor by the employer. In the present case, as pointed out above, the Employer has the right to control the tenure of the operators under the agents; and as hereinbefore noted the agents do not set the wages of the operators, nor do the agents possess more than nominal freedom in the operation of the exchanges. It is clear that those factors upon which the Board most heavily relied to find an in- dependent contractor status in the Southwestern case are missing here. The cases are therefore distinguishable.9 Although we here find that an employment relationship exists be- tween the agents and the Employer, we shall not include all the agents in the unit. The record shows that several of the agents have one or more operators working under them and that these agents have the power, coextensive with some management representatives, to hire :and discharge the operators ; we shall, therefore, exclude such agents from the unit as supervisors. As the remaining agents possess no supervisory authority, we shall include them in the unit. Moreover, because the agents are not independent contractors, we find that the operators at the agency exchanges are employees of the Employer, and we shall also include them in the unit. Exchange Plant Department Men: As stated above, the Plant De- partment is charged with the installation and maintenance of the Employer's properties. There are approximately 35 persons in the Plant Department. About 25 of these are permanently assigned to the Del Rio headquarters, and 10 are assigned to exchanges outside Del Rio. Of the latter number, the Employer contends that 5, namely, Trliea, Dodson, Wallen, Gagnee, and McDonald, are supervisors. The other 5 men, herein called helpers, are assigned to assist 4 of the 5 named individuals-Trlica, Dodson, and Wallen having 1 helper apiece, and Gagnee 2 helpers. As Trliea, Dodson, Wallen, and Gagnee hire and discharge their helpers only when the officer in charge at Del Rio is unavailable to handle these functions, and as the direc- tion by these 4 men of the activities of their respective helpers is 76 N . L. R. B. 1105, 1115 . ( Chairman Herzog dissenting.) Cf. Matter of San Marcos Telephone Company, supra. DEL RIO & WINTER GARDEN TELEPHONE COMPANY 203 routine in nature, we are of the opinion that the authority of the 4 over their helpers does not exceed that of a skilled craftsman with respect to his helper. Such authority is not sufficient to make Trlica, Dodson, Wallen, and Gagnee supervisors within the meaning of the Act.lo Trlica, Dodson, Wallen, and Gagnee also have the authority, as does McDonald, to hire additional laborer help for the duration of special installation jobs. However, we do not believe that this authority con- stitutes them supervisors within the meaning of the Act as the author- ity is only irregularly and sporadically exercised 11 Accordingly we shall include Trlica, Wallen, Dodson, Gagnee, and McDonald in the unit. We shall also include in the unit the helpers who regularly assist Gagnee., Trlica, Dodson, and Wallen for, although the Employer states that the helpers are probationary employees, it appears that these helpers have a community of interest with other employees as they can normally anticipate, and are regularly promoted to, steady employment.12 However, we shall exclude from the unit, as tem- porary employees, those laborers who are hired by these exchange plant men for the duration of special installation jobs because, as indicated above, such jobs occur infrequently and generally last for only a few days.13 Cashiers: The Employer would exclude Imogene Oden and An- gelita Ramos from the unit as supervisors and management repre- sentatives. Oden and Ramos are in effect managers of the business offices at the Crystal City and Hebbronville exchanges, respectively, where they act as cashiers and bookkeepers. Both Oden and Ramos are assisted in their duties for a few hours daily by a switchboard operator. During these daily periods, Oden and Ramos assign and direct the work of the operator assisting each of them. Even then, however, the operators remain ultimately responsible to the chief operators who are their normal supervisors. Under these circum- stances, we do not believe that the supervisory duties of Oden and Ramos are sufficiently great to make them supervisors as defined by the Act.14 Moreover, as Oden and Ramos are not responsible for the formulation of management policy or the handling of the Employer's labor relations, we find that they are not management representa- tives.15 Accordingly, we shall include Oden and Ramos in the unit. 11 See Matter of William C. Meredith Company, Inc., 74 N. L. R. B. 1064, 1067-1068; Matter of Rodgers-Wade Manufacturing Company, 69 N. L. R. B. 264, 266-267; and Matter of Duval Texas Sulphur Company, 53 N. L. R. B. 1387, 1390-1391. " Matter of Fred H. Cole, d/b/a Cole Instrument Company, 75 N. L. R. B . 348, 350, and cases cited ; and Matter of Rocky Mountain Pipe Line Company et at, 79 N. L. R. B. 1119. 12 See Matter of Crossett Chemical Company, 71 N. L . R. B. 433, 435. 12 Matter of Interstate-Trinity Warehouse Company, 74 N. L. R. B . 521, 522. 14 See Matter of United States Gypsum Company, 81 N. L. R. B. M; and Matter of Rocky Mountain Pipe Line Company, et al, supra. 16 Matter of The Ohio Associated Telephone Company, supra. 204 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD Private Secretaries: The Employer contends that Josephine Barry, Ruth McCulley, and Tanella Harlan should be excluded from the unit as confidential employees. Barry is secretary to both the field operations supervisor and the assistant plant superintendent. McCul- ley and Harlan are employed in the office of the secretary-treasurer where they perform bookkeeping, accounting, and stenographic work. Although McCulley and Harlan in the course of their duties have access to many of the Employer's pay-roll and other financial records, it does not appear that they have access to confidential data pertaining to general labor relations. Nor does it appear that the supervisors of Barry, McCulley, or Harlan #ormulate the Employer's labor relations policies. Accordingly, we find that Josephine Barry, Ruth McCulley, and Tanella Harlan are not confidential employees within the Board's definition.16 We shall therefore include them in the unit. We find that all employees in the Plant, Traffic, and Commercial- Accounting Departments at the various exchanges of the Del Rio and Winter Garden Telephone Company, and in its general offices at Del Rio, Texas, including the agents at the Comstock, Spofford, Bates- ville, Asherton, Encinal, Bruni, and Zapata, Texas, exchanges; the operators including the so-called "probationary" operators at all ex- changes; the Plant Department employees including the so-called "probationary" helpers at the Hebbronville, Crystal City, Sabinal, Devine, and Carrizo Springs, Texas, exchanges; the cashiers at the Crystal City and Hebbronville, Texas, exchanges; the secretary to the field operations supervisor and the assistant plant superintendent; and the bookkeeping, accounting, and stenographic assistants in the sec- retary-treasurer's office; but excluding temporary employees, the agents at the Big Wells, La Pryor, Lytle, Devine, and Marathon, Texas, exchanges; chief operators; and all other supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The determination of representatives : It appearing from the record that all probationary employees are hired with the expectation that they will become regular employees, we find that they have a sufficient interest in the present election to entitle them to a voice in the choice of bargaining representatives. We find, therefore, that probationary employees are eligible to vote in the election.17 Because of the distances between the exchanges, the parties are in agreement that the election be conducted by mail,*except at Del Rio, 1B Matter of Inter-Mountain Telephone Company , 79 N. L. R. B. 715. See Matter of The Firestone Tire and Rubber Company, 73 N. L. R. B . 691, 695. 17 Matter of Crossett Chemical Company, supra. DEL RIO & WINTER GARDEN TELEPHONE COMPANY 205 'Texas, where they agree a manual ballot should be held. As the Regional Director is authorized to conduct elections in such manner as he deems advisable and expedient under the circumstances pre- sented, we shall leave the determination of the method to be employed in the conduct of the instant election to the Regional Director's ,discretion.18 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by :secret ballot shall be conducted as early as possible, but not later than .30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date .of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Southwestern Division No. 20, Communication Workers of America. Is Matter of Kentucky Central Life and Accident Insurance Company, 72 N. L. R. B. 548, 549.